Gosa v. Mayden, TCA 1519.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
• Writing for the Court: ARNOW
• Citation: 305 F. Supp. 1186
• Docket Number: TCA 1519.
• Decision Date: 13 November 1969
• Parties: James Roy GOSA, Petitioner, v. J. A. MAYDEN, Federal Correctional Institution, Tallahassee, Florida, Respondent.

305 F. Supp. 1186

James Roy GOSA, Petitioner,
v.
J. A. MAYDEN, Federal Correctional Institution, Tallahassee, Florida, Respondent.

TCA 1519.

United States District Court N. D. Florida, Tallahassee Division.

November 13, 1969.

James Roy Gosa, in pro. per.

Clinton Ashmore, Asst. U. S. Atty., Northern District of Florida, Tallahassee, Fla., for respondent.

ORDER

ARNOW, Chief Judge.

This cause is before this Court on petition for writ of habeas corpus. Petitioner is presently confined at the Federal Correctional Institution, Tallahassee, Florida, as the result of a military court-martial on December 2, 1966. Petitioner alleges that he was convicted by military court-martial for a non-service connected offense, and argues that the recent Supreme Court case of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), should be applied retroactively to his case. The United States Attorney has responded to the Court's order to show cause by first denying that the rule of O'Callahan is applicable to the facts of this case, and then by arguing that even if applicable, O'Callahan should be applied prospectively, rather than retroactively.

From a reading of the record presented in this case, it is obvious that Petitioner was convicted by military court-martial for a crime which was non-service connected as defined by O'Callahan. Petitioner was convicted of rape, which occurred while he was off base, off duty, dressed in civilian attire, and with the woman involved being a civilian. The sole but important question remaining for this Court to consider is that of the retroactive application of O'Callahan.

The majority of the court in the O'Callahan case held that a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance or connection is entitled to his constitutional rights of indictment by a grand jury and trial by a petit jury in a civilian court, and that a court-martial proceeding has no jurisdiction over such crimes. In spite of the fact that the Supreme Court, in O'Callahan, talks in terms of a lack of jurisdiction on the part of military courts martial, this Court is of the opinion that the basic rules laid down in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and...